Posts Tagged ‘gender’

OCTOBER 17, 2016 VOLUME 23 NUMBER 39
Kelly and Sam are a married couple. They want to have a child, but cannot do so together, so they agree that Kelly will undergo artificial insemination. The process is successful, and Kelly delivers a beautiful baby boy, Edward.

Does Sam have any duty to support Edward? If Kelly and Sam get divorced, will Sam have any chance at custody, or joint custody, of Edward? If not, does Sam have any right to visitation with Edward?

Take this question forward a few years. Imagine that Kelly and Sam do get divorced, and Sam dies shortly after the divorce is final (without having written a will). Does Edward get any share of Sam’s estate — or perhaps Sam’s entire estate?

These questions may seem easy. Yes, of course Sam has a duty of support. Of course Sam has a chance at custody (and in any event, visitation) upon Kelly and Sam’s divorce. Of course Edward is an heir to Sam’s estate.

Oh — we left out an important element. Kelly and Sam are both women. Their marriage is recognized because of the 2015 U.S. Supreme Court decision in Obergefell v. Hodges. That landmark court decision holds that same-sex marriages are entitled to the same legal status, protections and liabilities as heterosexual marriages.

Arizona law says that when a child is born to a married couple, the husband is presumed to be the child’s father. Does that mean that a same-sex partner is presumed to be the father? Or a second mother? And if the law creates just a “presumption” of paternity, can that be overcome by proof of the biological impossibility of one woman impregnating another?

This is an interesting thought experiment — except that it’s a real question in an actual Arizona court case. We’ve changed the names of all the principals, but this very story played out in a courtroom in Tucson last spring. Kelly had filed for a divorce, and argued that Sam had no right to consideration for custody of or visitation with Edward.

The trial court judge determined that it would be impermissible to create a presumption for a married man that would not apply to a similarly-situated spouse just because she was a woman. Besides, Kelly and Sam had entered into an agreement before Edward was born — they had agreed to be treated as co-equal parents and to seek a “second parent” adoption if they ever resided in a state that permitted same-sex couples to formally adopt one another’s children (Arizona does not clearly authorize such proceedings).

Kelly sought review by the Arizona Court of Appeals, which agreed to take the case under “special action” jurisdiction (even though the underlying case has not been concluded). Last week the Court of Appeals agreed with the trial judge — though with a slightly different shading in their interpretation. As the appellate court notes, the “presumption” that a married partner is the father of a child born during the marriage is not based only on biology. It is also partly a response to the social policy that favors giving a child a right to support from and attachment to a person who has assumed the role of parent.

None of that, ruled the appellate court, is different just because Sam is a woman. Accordingly, the custody/visitation/support case should proceed as if the Arizona statute was gender-neutral, and Sam should enjoy the presumption that she is Edward’s parent. McLaughlin v. Jones, October 11, 2016.

Kelly and Sam’s legal case is (we think) a fascinating analysis of the differences we have to confront as same-sex marriage becomes clearly embedded in our legal framework. But, because of what we do here at Fleming & Curti, PLC, we’re mostly interested in the probate and inheritance implications of their legal case.

Clearly, Edward is now an heir of Sam. If Sam were to die without writing a will, a portion of her estate — and perhaps all of her estate — would pass to Edward. If Kelly were to die, Sam would have the right to full custody of Edward — even if Kelly had nominated someone else to serve as Edward’s guardian.

Interestingly, the words “father” and “mother” do not appear anywhere in Arizona’s Probate Code (Title 14 of the Arizona Revised Statutes). References to “parent” or “parents” should be easy to work with, and the gender of a decedent’s spouse is irrelevant under existing probate law.

In another generation, though, there will be some oddities. If, for example, Edward were to grow up, have children of his own and then die without writing a will, his estate might pass half to his “maternal” and half to his “paternal” family lines. We can hope that by that time, Arizona’s statutory language will have caught up with the times.

When Marshall Gardiner died in Kansas in 1999, he was survived by his wife of less than a year and his grown son. Mr. Gardiner left no will, but he did leave a legal controversy—whether his wife could inherit from his estate, since she had been born as a man.

Elder Law Issues first reported on the question of J’Noel Gardiner’s legal right to inherit from her husband’s estate in June, 2001. That was when the Kansas Court of Appeals ruled that “gender” meant more than external sexual characteristics present at birth. The Court of Appeals ordered further hearings into J’Noel Gardiner’s “gender” to determine whether she could be legally considered a woman, and the marriage validated (read the original Issues article).

The Kansas Supreme Court has now reversed that decision from the lower appellate court. In a ruling last week, the highest court in Kansas determined that the marriage between Marshall and J’Noel Gardiner was invalid because Kansas law prohibits marriage between two persons of the same sex. Despite extensive sexual reassignment surgery—and even a new Wisconsin birth certificate indicating that she is a woman—J’Noel Gardiner was born a man and remains a man for purposes of marriage in Kansas.

The dispute arose because Joe Gardiner, Marshall Gardiner’s son, challenged J’Noel Gardiner’s standing as a surviving spouse. He cited not only the plain language of the Kansas statute but also the legislative discussions when the law was passed. The Kansas legislature had made clear that it felt that marriage between two persons of the same sex was a violation of Kansas’ public policy, and the Court decided that it was bound by the legislature’s decision.

The justices took the narrow view of gender: a person is and remains the gender indicated by sexual characteristics at birth. “A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to ‘produce ova and bear offspring’ does not and never did exist. There is no womb, cervix, or ovaries, nor is there any change in his chromosomes,” wrote the Court, and therefore J’Noel Gardiner could not inherit from the estate of her “husband” Marshall. Estate of Gardiner, March 15, 2002.

The decision in the Gardiner case had been closely watched, of course, by attorneys and by advocates on both sides of the legal questions. The Court notes that there are a growing number of jurisdictions which have been forced to deal with similar issues. In 1999 the Texas Court of Appeals decided that a transsexual was not a “surviving spouse” for purposes of filing a wrongful death claim. In 1987 an Ohio court denied a marriage license to a couple on the basis that the proposed wife was born as a man.

One interesting exception to this trend appears in a case from the Sydney, Australia, family courts. In that case a marriage involving a postoperative female-to-male transsexual was sanctioned, based partly on a doctor’s report that his “brain sex” was male.